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Cerulean Technology/CCC CARNIEL/CLFIY CONiN. CTR Fax:3175712585 liar 26 '01 15:03 P.02/03 ) C2z,/ .(2/.Oz/"AppROVI!O, AS1' · FOIM ADDENDUM TO END USER BETA EVALUATION AND NON-DISCLOSURE AGREEMENT WHEREAS, on or about Isdai',;h 1_.8, 2001, Cerulean Technology, Inc., a Massachusetts cc~rporalion ("Cerulean") and the City of Carreel, Indiana. by and through its Board of Public Works and Safer} ("City"), entered into that certain "End User Beta Evaluation and Non-Disclosure/,grccment ("Agrcemex~t"), attached hereto and marked as ~xhibit A. WIiEREAS. the parties to the Agreement now wish to amend same as set forth hcrcin- NOX~'. THEREFORE, the parties agree as follows: The foregoing Recitals are incorporated heroin by this reference. 2, Notwithstanding the terms and conditions contained in the Agreement and particularly. although not exclusively, paragraphs 5 and 8 thereof. the parties hereto agree that the Agreement and this Addendure constitute disclosable public records, and that thc..~_____~ City release to the public documents and information which may be deemed by Cert lean Io he "confidential". "secret" or "trade secrets" pursuant to the Indiana Public ~cccss To P, ecords Act, IC 5-14-3, as the sin'no may be amended from time to time. or pursuant to court order. Te~City agrees to notify Cerulean Dcforc releasing such documents information in this manner. 3. in addition to the terms and conditions set forth in paragraph 10 of the AgreemenL Cerulean shall engage in no advertising, sales promotion or printing of other materials identifying City or this Agreement without the prior written review and consent c,f City. 4. Cerulean agrees that it and all of its officers, employees, agents, contr;:.dors subcontractors shall comply with all existing and future laws of the United State.~;. the of Indiana and City prohibiting discrimination against any employee. ap~fiicant f~r employment or other person in the provision of any Goods and Services provided b_v this Agreement with respect to their hire. tenure. terms. conditions and prl, ileScs employment and any other matter related to their employtnent or subcontracim ;, because: of race, religion, color, sex. handicap, national origin, ancestry. age, disabled vch.'ran status and/or Vietnam era veteran status. 5. All od~er provisions contained in the Agreement not specifically amended or m..xiificd b_~ this Addendure shall be unaffected thereby and shall rcnaain in full force ;tnd ct'l~ct pursuant to the terms thereof. CARMEL/CLAY COMN. CTR Fax:5175712585 Man 26 "01 15:04 P. 03/03 6- This Addendure shall become effective as of the date it is last executed by a pal-ty hereto and shall thereafter remain in effect as long as the Agreement remains in elferr, unless earlier modified in writing by the parties hereto, IN WITNESS THEREOF, the parties have caused this Addendure to be cxccutged by the ir duly authorized representatives on the date(s) shown below, CITY OF CARMEL, iNDIANA By and through its Board of Public Works and Safety CERULEAN TECHNOLOGY, IN(, .lamese~ramard, Presiding Offic~ Date: Billy Walker, Member Dater ATTE~N BY: Printed Name Title FID/SSN: 2 CERULEAN TECHNOLOGY, INC. End User Beta Evaluation and Non-Disclosure Agreement (January 2000 version) THIS END USER BETA EVALUATION AND NON-DISCLOSURE AGREEMENT (the "Agreement") dated as of March 8, 2001. between CERULEAN TECHNOLOGY, INCORPORATED, a corporation organized under the laws of the State of Delaware whose principal place of business is located at 300 Nickerson Road, Marlborough MA, 01752 (hereinafi:er referred to as "Cerulean") and Carreel Clay Communications Center. whose principal place of business is located at 31 First Avenue. NW.. Carmel. IN 46302, (hereinafter referred to as "END USER"). WHEREAS, Cerulean and END USER desire to enter into a non-exclusive arrangement to install a Beta version of a Cerulean product (s) (the "Pruduct(s)") at the END USER'S site for purposes of testing, analysis and evaluation; and WHEREAS, pursuant to a separate agreement, END USER is a current end user of Cerulean Products; WHEREAS, each party has determined that it will be beneficial to each of them to enter into a definitive agreement to test, analyze, and evaluate the Product(s); and WHEREAS, END USER wishes to license, take delivery of, and use the Product(s), subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants of the parties as hereinafter set forth, Cerulean and END USER agree as follows: 1. GRANT OF LICENSE 1.1 Subject to the terms and conditions set forth in this Agreement, Cerulean hereby grants to END USER a personal, nontransferable, nonexclusive license to use the Product(s) exclusively for purposes of testing and evaluation of the Product(s). 2. USE OF MATERIALS AND SOFTWARE 2.1 2.2 "Software" shall include without limitation all machine and human readable programs and all supporting documentation without limitation provided to END USER by Cerulean as part of, or with respect to, the Beta Evaluation Product(s). This license allows END USER to install each copy of the Product(s) provided by Cerulean under this Agreement on a single server located at END USER's site. END USER agrees not to reverse compile or disassemble the Product(s) and will not either itself or permit others to create, by reverse compiling or disassembling or otherwise, the source programs or any part thereof from the object programs or from other information made available by Cerulean, whether oral, written, tangible or intangible. END USER will not transfer, sell, assign, or otherwise convey the Product(s) to another party without Cerulean's prior written consent. Software listed on Schedule A may be used only on the Beta Evaluation Product(s) server specified in Schedule A. END USER may not copy, sublicense, transfer, or assign the Beta Evaluation Product(s) or any portion or copy thereof, to any third party nor copy or use the Beta Evaluation Product(s) other than for the express purpose of this Agreement. 3. TERM This Agreement shall take effect on the date specified above (the "Effective Date") and unless modified or ea~ier terminated shall continue for a period of two (2) months from the date hereof. The termination or extension of this Agreement shall not affect the obligations of either party for any existing Order issued under any other Agreement, and any other Order(s) shall continue in effect as though this Agreement had not been signed, terminated or extended, unless otherwise agreed by the parties. This Agreement may be extended for an additional two (2) month period(s) by mutual consent of the parties provided END USER and Cerulean mutually agree to such intention in writing at least thirty (30) days prior to the end of the current term. For use by Cerulean Technology, Inc. Direct Sales END USER BETA EVALUATION AND NONDISCLOSURE AGREEMENT EXI4 I~ITnA-n SC6Pi 4.1 4.2 Cerulean's present intentions are to develop a commercial product from the Beta Evaluation Products. It is nevertheless agreed that Cerulean does not commit, promise, or agree to finally release and/or offer for sale the Beta Evaluation Product(s), whether or not perfected, and that Cerulean has the right to unilaterally cease and abandon the Beta Evaluation Product(s) project at any time without any obligation or liability whatsoever to END USER. END USER shall have no obligation or commitment with respect to the purchase of the Beta Evaluation Product(s), whether perfected or not, from Cerulean. Cerulean makes no commitment or obligation to END USER as to any consideration for END USER's entering into this Agreement. 5. NONDISCLOSURE BY END USER 5.1 END USER acknowledges that the Product(s) is a proprietary product and process of Cerulean that embodies certain valuable trade secrets and other proprietary or confidential information; that Cerulean has rights of copyright therein; that Cerulean's rights extend to both the intellectual processes and to the actual expressions and articulations contained in the Product(s); and that no fights of ownership or title to the intellectual propeay in the Product(s) is transferred to the END USER. END USER may not remove from or deface any decal or imprint on the Product(s) naming Cerulean or any other party as propdetur thereof or do any other act inconsistent with such proprietorship. All improvements or revisions to the Product(s) made or conceived by Cerulean or its agents or employees or by END USER in the course of use of the Product(s) under this Agreement are the property of Cerulean. User agrees that END USER will not use for its own benefit or disclose to or use for the benefit of any other person, except as permitted under this Agreement, any of such property without Cerulean's prior written consent. 5.2 END USER agrees to keep any information concerning the Product(s), including status, function and performance, confidential. END USER agrees not to disclose that it is a pre-release site, nor disclose any information with regard to the Product(s), without the prior written consent of Cerulean. 5.3 All of the software programs delivered to END USER by Cerulean for the Beta Evaluation Product(s) or for use in connection therewith, shall remain the sole and exclusive property of Cerulean or the copyright holder and shall be returned to Cerulean within three (3) business days after receipt of written notice from Cerulean to terminate this agreement as specified in Sections 8.1 and 8.2 of this Agreement, or upon request by Cerulean. All reports, designs, specifications, and other materials and all fights in all media made and/or developed under this Agreement directed to enhancement of the Beta Evaluation Products, whether prepared by Cerulean or END USER during the course of or as a result of this Agreement, shall be the exclusive property of Cerulean throughout the world; and all such reports, designs, specifications or other materials and all media shall be kept confidential by END USER. In addition, Cerulean shall have the sole and exclusive right to register copyright of such materials in its own name in any and all countries and to obtain renewals and manufacture, reproduce, publish, distribute and sell such media. 6. DEVELOPMENT - - TITLE/SUPPORT 6.1 The Beta Evaluation Product(s) at all times remain the sole and exclusive property of Cerulean or the copyright holder. Cerulean or the copyfight holder also retains all title and interest therein subject only to the right of END USER to use the Beta Evaluation Product(s) in accordance with this Agreement. The Beta Evaluation Products shall be physically identified as being owned by Cerulean. END USER shall make no copies of the manuals and/or documentation supplied with the Beta Evaluation Products. 6.2 The Beta Evaluation Product(s) shall be used only by END USER's employees and only in a proper and lawful manner and for no purposes other than those for which it was designed. 6.3 In the event of malfunction or failure, END USER shall promptly notify Cerulean and make the software available for return to Cerulean. END USER shall neither perform, nor attempt to perform, maintenance except as expressly authorized by Cerulean. 6.4 END USER shall make no alteration, addition, or improvement to the Beta Evaluation Product(s) without the prior consent of Cerulean. All shipping and in-transit insurance charges in connection with this Beta Evaluation Product(s) use shall be borne by Cerulean. However, END USER shalI bear all risk-of-loss for damage to a Beta Evaluation Product(s) after its tender to END USER by Cerulean and shall reimburse Cerulean for such losses. 7. DISCLAIMER OF LIABILITY 7.1 EXCEPT AS SET FORTH IN THIS AGREEMENT, END USER RECOGNIZES THAT THE BETA EVALUATION PRODUCT(S) TO BE DELIVERED HEREWITH ARE PRERELEASE VERSIONS AND MAY HAVE DEFECTS OR DEFICIENCIES WHICH CANNOT OR MAY NOT BE CORRECTED BY CERULEAN. THEREFORE, THE BETA EVALUATION PRODUCTS ARE PROVIDED TO END USER ON AN "AS IS" BASIS, IT BEiNG UNDERSTOOD THAT CERULEAN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, OF PRODUCT(S), APPLICATIONS, OR SERVICES FURNISHED HEREUNDER OR IN CONNECTION HEREWITH. CERULEAN DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE BETA EVALUATION PRODUCT(S), ITS USE, OPERATION OR SUPPORT. 7.2 iN NO EVENT SHALL CERULEAN BE LIABLE FOR ANY SPECIAL, iNCIDENTAL, THIRD PARTY, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR THE LOSS OF PROFIT, REVENUE, SOFTWARE OR DATA EVEN IF CERULEAN HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. iN NO EVENT SHALL CERULEAN'S LIABILITY OR ITS SUPPLIERS' LIABILITY FOR DAMAGES OF ANY NATURE EXCEED THE PURCHASE PRICE OF THE PRODUCTS, APPLICATIONS, OR SERVICES PROVIDED UNDER THESE TERMS. 8. NON-DISCLOSURE 8.1 Non-Disclosure of A~reements. Neither party will make any disclosure regarding the terms of this Agreement or the business arrangements described herein without obtaining the prior written consent to the other party; provided, however, that (i) the parties may communicate with Customers and Prospects to the extent masonably required to perform hereunder (but will obtain prior approval of the other party hereto before identifying such party in advertisements, mass mailings or general publicity); (ii) after notice to the other party, each party will be permitted to make such disclosures as are required by legal or regulatory requirements applicable to, and beyond the reasonable control of, the party; and (iii) either party may disclose the terms of this Agreement and the business arrangements described herein to employees of their affiliates who have a need to know, so long as such affiliate employees are advised of and agree to be bound by the provisions of this Article. 8.2 Confidential Information. The parties recognize that in the course of performing this Agreement, both parties have had and will continue to have access to certain confidential or proprietary information. belonging to the other and each desires that any such confidential and proprietary information remain confidential. Each party agrees that, both during the term hereof and for a period of three (3) years after the termination of this Agreement each party will use the same means it uses to protect its own confidential proprietary information, but in no event less than reasonable means, to prevent the disclosure and to protect the confidentiality of both (i) written information received form the other party which is marked or identified as confidential, and (ii) oral or visual information identified as confidential at the time of disclosure which is summarized in writing and provided to the other party in such written form within twenty (20) days after such oral or visual disclosure ("Confidential Information"). Confidential Information does not include information that is (i) already known by the recipient party without an obligation of confidentiality, (ii) publicly known or become publicly known through no unauthorized act of the recipient party, (iii) rightfully received from a third party, (iv) independently developed by the recipient party without use of the other party's Confidential Information, (v) disclosed without similar restrictions to a third party by the party owning the Confidential Information, (vi) appreved by the other party for disclosure, or (vii) required to be disclosed pursuant to a requirement of a governmental agency or law so long as the disclosing party provides the other party with notice of such requirement prior to any such disclosure. Trade Secrets. The term "Trade Secrets" as used in this Agreement means Confidential Information that: 8.3.1 derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and 8.3.2 is the subject ~f eff~rts that are reas~nab~e under the circumstances t~ maintain its secrets. The parties agree that neither will use for any purpose whatsoever or disclose Trade Secrets of any party at any time hereafter except as necessary for the performance of its duties under this Agreement or until such Trade Secrets become generally available to the public by independent discovery or development or publication. The rights of the parties to protection of their Trade Secrets in this Agreement are in addition to the rights which the parties have under common or statutory law for the protection of Trade Secrets. 8.4 Remedies. Each party acknowledges that the other would suffer irreparable damage in the event of any breach of the provisions of this Article. Accordingly, in such event, a party will be entitled to temporary, preliminary and final injunctive relief, as well as any other applicable remedies at law or in equity against the party who has breached or threatened to breach this Article; 8.5 No Riohts Granted. Nothing contained in this Agreement shall be construed as granting or conferring any rights by license or otherwise in any Confidential Information or Trade Secrets disclosed to the receiving party. All Confidential Information and Trade Secrets shall remain the property of the disclosing party and shall be returned by the receiving party to the disclosing party upon request. All notices, abstracts, memoranda, or other documents prepared by receiving party which contain Confidential Information or Trade Secrets or any discussion thereof, shall be destroyed or returned to the disclosing party upon written request. If the parties hereto decide to enter into any licensing development or other arrangement regarding any Confidential Information or Trade Secrets or present or future patent claims disclosed hereunder, it shall only be done on the basis of a separate written agreement between them. No disclosure of any Confidential Information or Trade Secrets hemunder shall be construed a public disclosure of such Confidential Information or Trade Secrets by either party for any purpose whatsoever. 8.6 Limitation on Obligations. The fumishing of Confidential Information or Trade Secrets hereunder shall not obligate either party to enter into any further agreement or negotiation with the other or to refrain from entering into an agreement or negotiation with any other party. 9. TERMINATION 9.1 Termination. 9.1.1 9.1.2 9.1.3 This Agreement may be terminated by either party with or without cause by giving thirty (30) days prior written notice. Upon material breach or default under this Agreement by either party, if the other party gives notice of such breach or default and the same is not cured within thirty (30) days, then without limitation of any other remedy available hereunder, the non-defaulting party may terminate this Agreement immediately by delivery of a notice of termination simultaneously with the notice of default or at any time thereafter. This Agreement may be immediately terminated by a party without prior written notice in the event that the other party violates any of the conditions of Section 8.2 relating to the Confidential Information, or a party shall have ceased doing business, been adjudged bankrupt or insolvent, made an assignment for the benefit of creditors, and/or filed for a petition in bankruptcy or reorganization. Following expiration or termination of this Agreement, except for the obligations of the parties set forth in Section 8.2 below, the parties will have no further obligation or responsibility to each other. Upon termination of this Agreement, END USER will cause the immediate return to Cerulean of all existing copies of all Product(s) delivered to END USER under this Agreement, accompanied by a certification by an officer of END USER that the items so returned constitute all of the existing copies (whole or partial) of the Product(s) and that END USER has not retained or disposed of any copies. 9.2 Survival of Obligations Upon Expiration of Term or Termination of Ac, reement. 9.2.1 9.2.2 All obligations of the parties arising hereunder and relating to any Beta Evaluation Product(s) existing on the date of expiration or termination shall continue in full force and effect subsequent to and notwithstanding the termination or expiration of this Agreement and shall in no way affect the fights and obligations of Cerulean and END USER under any then-existing agreement or similar form of agreement between the parties, except to the extent set forth therein. All representations, warranties and covenants of the parties set forth in Section 5.1, Section 6.1 and Article 8 shall survive the termination of this Agreement for a period of three (3) years. "2 10. PUBLICITY No advertising, sales promotion or printing of other materials by END USER identifying Cerulean or identifying this Agreement in any manner will occur without the prior review and written consent of Cerulean. 11. GENERAL 11.1 11.2 Assignment. This Agreement is personal to each party hemto and neither may assign or otherwise transfer its rights or delegate its duties hereunder without the prior written consent of the other, which consent shall not be unreasonably withheld; provided, however, either party may upon written notice to the other assign any of its rights or obligations hereunder to (i) an Affiliate of the assigning party or (ii) the purchaser of or successor in interest to all or substantially all of the assigning party's assets unless (with respect to an assignment by END USER) in the reasonable judgement of Cerulean the assignee is a competitor of Cerulean, in which case the assignment by END USER shall not be valid or binding between the parties without Cerulean's prior written consent. Notices. Except as otherwise provided in this Agreement, all notices or other communications which are required or permitted hereunder shall be in writing and shall be valid and sufficient if delivered by: a) registered or certified mail, postage prepaid; b) hand delivery; c) ovemight courier prepaid; d) facsimile transmission upon confirmation of receipt; or e) overnight courier as follows: To Cerulean: Cerulean Technology, Inc. 300 Nickerson Drive Marlborough, Massachusetts 01752-4694 Attn: Tom Holier, VP, Finance and CFO Phone: 508-460-4000 Fax:508-460-4099 To END USER: 11.3. Governing Law and Forum. This Agreement shall be govemed by the laws of the Commonwealth of Massachusetts, excluding its conflict of laws rules. 12. ENTIRE AGREEMENT. This Agreement, together with any attached Exhibits, Schedules or Amendments, constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between the parties hereto are expressly canoeled and/or superseded. Any modifications of this Agreement must be in writing and signed by a duly authorized officer of both parties hemto. IN WITNESS WHEREOF, the parties have caused this End User Beta Evaluation and NonDisclosure Agreement to be executed by their duly authorized representatives on the date(s) shown below. CERULEAN TECHNOLOGY, INC. Name: Title: V'? Date: CARMEL CLAY COMMUNICATIONS CENTER By:(j~'END USE" '//LC~ Name: Title: Date: Ol~lO0 ' SCHEDULE A CERULEAN BETA EVALUATION PRODUCT(S) 1. SOFTWARE · Beta Version of PacketCluster Patrol 4.3.1 Software; · Beta Version of PacketCluster Rescue 4.3.1 Software HARDWARE · Use of existing on-site PacketCluster Server DOCUMENTATION · PacketCluster 4.3.1 Beta Release Notes · PacketCluster 4.3.1 Beta Documentation 4. TRAINING: · Training for PacketCluster Rescue Users will be given informally on-site at time of installation. May 4, 2001 Mr. Tom Holier, VP CERULEAN TECHNOLOGY, INC. 300 Nickerson Drive Marlborough, Massachusetts 01752-4694 Dear Mr. Holler: On April 18, 2001, the Board of Public Works and Safety approved a contract and addendure to do business with your company. Enclosed is a fully executed copy of that Agreement for your records. If you have any questions or concerns, please do not hesitate to contact me at 317.571.2413. Sincerely, COPY Carrie A. Gallagher Deputy Clerk-Treasurer Enclosure